State v. Badal

1. Heard learned counsel for the applicant, Sri J.L. Maurya, learned AGA for the State-respondents and perused the record.

2. The present petition under Section 482 Cr.P.C./528 BNSS has been preferred with the following main reliefs: "For the facts, reasons and circumstances as stated in the accompanying afÏdavit it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned charge dated 24.08.2018 and cognizance / summoning order dated 15.01.2019 alongwith its resultant proceedings which is arising out of case crime no.91/2018, in offence under section 174 I.P.C., Police Station Aliganj, District Ambedkar Nagar, registered as POCSO Case No.23/2019 State Vs Badal @ Vinay pending before Special Judge POCSO Act Ambedkar Nagar. It is further prayed that this Hon'ble Court may kindly be pleased to stay the further proceedings of POCSO Case No.23/2019 State Vs Badal @ Vinay pending before Special Judge POCSO Act Ambedkar Nagar till disposal of instant petition before this Hon'ble Court, as it is desirable in the interest of justice."

3. Since only a legal issue is involved in the present case, the matter is being decided at this stage with the consent of the parties.

4. The brief facts of the case are that an F.I.R. was lodged on 20.12.2017 under Sections 363, 366 IPC and 7/8 of POCSO Act wherein the summons were issued to the applicant. In the said case, despite issuance of the bailable and non-bailable warrants, the applicant had not appeared before court then the order of proclamation under Section 82 Cr.P.C. was issued. The police has pasted the proclamation passed by the concerned court under Section 82 Cr.P.C. at the door of the applicant and when he did not appear, an FIR under Section 174 IPC was registered against the applicant by the Sub Inspector/Investigating OfÏcer. The concerned court has taken cognizance and issued summons against the applicant and feeling aggrieved by the same, the present application has been preferred.

5. Learned counsel for the applicant has submitted that no FIR can be lodged by the Investigating OfÏcer or the police authority under Section 174 IPC for non appearance in a criminal case in which the proclamation order has been issued under Section 82 Cr.P.C. The only remedy available with the Investigating OfÏcer/Police OfÏcer is to move a complaint under Section 195 Cr.P.C. before the court concerned, hence, the initiation of proceedings under Section 174 IPC is bad in the eyes of law and the cognizance and summoning order issued by the concerned court is without application of mind and the same is liable to be quashed.

6. It is further submitted that if any proceeding is to be initiated i.e. by filing a complaint in writing either by the public servant concerned, or some other public servant to whom he is administratively subordinate. It is further submitted that in the present case public servant concerned means the Investigating OfÏcer or the ofÏcer under whom that Investigating OfÏcer is administratively subordinate. In the case of the applicant, the Investigating OfÏcer was Sub Inspector. In support of his submission, learned counsel for the applicant has relied upon the judgement and order of this Court dated 20.11.2020 passed in Criminal Misc. Writ Petition No.12772 of 2020 (Yogenshwar Sood And Another vs State of U.P. and 2 others) and the judgement of Hon'ble the Apex Court in the case of Daulat Ram vs. State of Punjab, 1962 Supp (2) SCR 812 : A.I.R. 1962 SC 1206.

7. On the other hand, learned A.G.A. has submitted that the applicant had not appeared despite the non-bailable warrants and proclamation under Section 82 Cr.P.C. was issued against him. It is further submitted that Section 174 I.P.C. provides initiation of proceeding and punishment against the persons who avoid the summons of the court, hence there is no illegality in the proceedings initiated against the applicant, but unable to dispute the submissions raised by the learned counsel for the applicant and the judgement relied upon.

8. After hearing learned counsel for the parties and going through the record and the judgements relied, it is found that Section 174 I.P.C. provides that initiation of proceedings and punishment against the person, whoever fails to appear at the specified place and the specified time in response to the proclamation issued, for the convenience Section 174 I.P.C. is quoted hereinbelow: "174. Non-attendance in obedience to an order from public servant. - Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

9. In the present case, as per the averment made by the learned counsel for the applicant and the case laws relied, it is evident that the procedure which is to be adopted for initiating proceedings is as per Section 195 Cr.P.C, for convenience Section 195 Cr.P.C. is quoted below: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance- (a) of any offence punishable under Sections 172 to 188 (both inclusive) of (i) the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, or (iii)of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) of any offence punishable under any of the following sections of the (i) Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court 115 [or by such ofÏcer of the Court as that Court may authorise in writing in this behalf], or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that- (a) where appeals lie to more than one Court, the Appellate court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deeded to be subordicate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

10. From perusal of the provisions, wherein it has been provided that no court shall take cognizance of any offence punishable under Section 172 to 188 I.P.C. except a complaint made by public servant concerned or some other public servant to whom is administrative subordinate and in the present case concerned public servant is the ofÏcer who had investigated the matter and in the present case the Sub Inspector was the investigating ofÏcer and he was under the administrative subordinate of Superintendent of Police but neither any complaint in writing was filed by the Sub Inspector or some other public servant to whom the Investigating OfÏcer is administrative subordinate.

11. In the judgement / order dated 20.11.2020 passed by this Court in Criminal Misc. Writ Petition No.12772 of 2020 (Yogeshwar Sood And Another vs. State of U.P. & 2 others) where the F.I.R. was challenged on the same ground and the Hon'ble Court has quashed the F.I.R. on the ground that as per provision contained in Section 195(1) in the Code of Criminal Procedure, 1973, there is a specific bar for taking cognizance of any offence punishable under Section 172 to 188 of the I.P.C. and quashed the F.I.R. with an undertaking of the petitioners that they will appear before the concerned Magistrate / Court. The relevant extract of the judgement is quoted hereinbelow:- "After hearing counsel for the parties and going through the record, it is apparent that Section 174-A deals with non-appearance and in case of issuance of a proclamation under section 82 of the Act-2 of 1974. As per provisions contained in Section 195(1) in the Code of Criminal Procedure, 1973 there is a specific bar from taking cognizance of any offence punishable under section 172 to 188 (both inclusive) of the IPC. Thus registration of FIR against petitioners under section 174-A, prima facie appears to be abuse of the process. However, in the writ jurisdiction we have to also balance equities. "

12. Learned counsel for the applicant has also relied upon judgement passed in the case of Daulat Ram vs. State of Punja reprted in 1962 Supp(2) SCR 812; AIR 1962 SC 1206; (1962)2 Crl LJ 286, the relevant para is quoted hereinbelow: "4. Now the offence under s. 182 of the Penal Code, if any, was undoubtedly complete when the appellant had moved the Tehsildar for action. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. In making his report to the Tehsildar therefore, if the appellant believed that some action would be taken (and he had no reason to doubt that it would not) the offence under that section was complete. It was therefore incumbent, if the prosecution was to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case. On the other hand what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House OfÏcer. The learned counsel for the State Government tries to support the action by submitting that s. 195 had been complied with inasmuch as when the allegations had been disproved, the letter of the Superintendent of Police was forwarded to the Tehsildar and he asked for "a calendar". This paper was flied along with the charge sheet and it is stated that this satisfies the requirements of s. 195. In our opinion, this is not a due compliance with the provisions of that section. What the section comtemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant namely the Tehsildar in this case. The trial was thus without jurisdiction ab inito and the conviction cannot be maintained. "

13. From the facts mentioned hereinabove, it is evident that no written complaint under Section 195 Cr.P.C. was ever made by the Investigating OfÏcer and filed the FIR under Section 174 IPC, hence the cognizance taken and issuance of summons to the applicant was therefore jurisdiction was wrongly assumed by the court and the trial was thus without jurisdiction ab initio as in absence of any complaint in writing by the ofÏcer concerned, as such, the proceedings of Case No.23/2019 State Vs Badal @ Vinay pending before Special Judge POCSO Act Ambedkar Nagar arising out of case crime no.91/2018, in offence under section 174 I.P.C., Police Station Aliganj, District Ambedkar Nagar is hereby quashed.

14. Accordingly, the present petition/application is allowed.

15. It is however open for the authorities to move an application under Section 195 Cr.P.c., if so advised. Order Date :- 16.4.2025 AKK AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for the applicant, Sri J.L. Maurya, learned AGA for the State-respondents and perused the record.

2. The present petition under Section 482 Cr.P.C./528 BNSS has been preferred with the following main reliefs: "For the facts, reasons and circumstances as stated in the accompanying afÏdavit it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned charge dated 24.08.2018 and cognizance / summoning order dated 15.01.2019 alongwith its resultant proceedings which is arising out of case crime no.91/2018, in offence under section 174 I.P.C., Police Station Aliganj, District Ambedkar Nagar, registered as POCSO Case No.23/2019 State Vs Badal @ Vinay pending before Special Judge POCSO Act Ambedkar Nagar. It is further prayed that this Hon'ble Court may kindly be pleased to stay the further proceedings of POCSO Case No.23/2019 State Vs Badal @ Vinay pending before Special Judge POCSO Act Ambedkar Nagar till disposal of instant petition before this Hon'ble Court, as it is desirable in the interest of justice."

3. Since only a legal issue is involved in the present case, the matter is being decided at this stage with the consent of the parties.

4. The brief facts of the case are that an F.I.R. was lodged on 20.12.2017 under Sections 363, 366 IPC and 7/8 of POCSO Act wherein the summons were issued to the applicant. In the said case, despite issuance of the bailable and non-bailable warrants, the applicant had not appeared before court then the order of proclamation under Section 82 Cr.P.C. was issued. The police has pasted the proclamation passed by the concerned court under Section 82 Cr.P.C. at the door of the applicant and when he did not appear, an FIR under Section 174 IPC was registered against the applicant by the Sub Inspector/Investigating OfÏcer. The concerned court has taken cognizance and issued summons against the applicant and feeling aggrieved by the same, the present application has been preferred.

5. Learned counsel for the applicant has submitted that no FIR can be lodged by the Investigating OfÏcer or the police authority under Section 174 IPC for non appearance in a criminal case in which the proclamation order has been issued under Section 82 Cr.P.C. The only remedy available with the Investigating OfÏcer/Police OfÏcer is to move a complaint under Section 195 Cr.P.C. before the court concerned, hence, the initiation of proceedings under Section 174 IPC is bad in the eyes of law and the cognizance and summoning order issued by the concerned court is without application of mind and the same is liable to be quashed.

6. It is further submitted that if any proceeding is to be initiated i.e. by filing a complaint in writing either by the public servant concerned, or some other public servant to whom he is administratively subordinate. It is further submitted that in the present case public servant concerned means the Investigating OfÏcer or the ofÏcer under whom that Investigating OfÏcer is administratively subordinate. In the case of the applicant, the Investigating OfÏcer was Sub Inspector. In support of his submission, learned counsel for the applicant has relied upon the judgement and order of this Court dated 20.11.2020 passed in Criminal Misc. Writ Petition No.12772 of 2020 (Yogenshwar Sood And Another vs State of U.P. and 2 others) and the judgement of Hon'ble the Apex Court in the case of Daulat Ram vs. State of Punjab, 1962 Supp (2) SCR 812 : A.I.R. 1962 SC 1206.

7. On the other hand, learned A.G.A. has submitted that the applicant had not appeared despite the non-bailable warrants and proclamation under Section 82 Cr.P.C. was issued against him. It is further submitted that Section 174 I.P.C. provides initiation of proceeding and punishment against the persons who avoid the summons of the court, hence there is no illegality in the proceedings initiated against the applicant, but unable to dispute the submissions raised by the learned counsel for the applicant and the judgement relied upon.

8. After hearing learned counsel for the parties and going through the record and the judgements relied, it is found that Section 174 I.P.C. provides that initiation of proceedings and punishment against the person, whoever fails to appear at the specified place and the specified time in response to the proclamation issued, for the convenience Section 174 I.P.C. is quoted hereinbelow: "174. Non-attendance in obedience to an order from public servant. - Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same, intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both; or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

9. In the present case, as per the averment made by the learned counsel for the applicant and the case laws relied, it is evident that the procedure which is to be adopted for initiating proceedings is as per Section 195 Cr.P.C, for convenience Section 195 Cr.P.C. is quoted below: "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance- (a) of any offence punishable under Sections 172 to 188 (both inclusive) of (i) the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, or (iii)of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) of any offence punishable under any of the following sections of the (i) Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court 115 [or by such ofÏcer of the Court as that Court may authorise in writing in this behalf], or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that- (a) where appeals lie to more than one Court, the Appellate court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deeded to be subordicate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

10. From perusal of the provisions, wherein it has been provided that no court shall take cognizance of any offence punishable under Section 172 to 188 I.P.C. except a complaint made by public servant concerned or some other public servant to whom is administrative subordinate and in the present case concerned public servant is the ofÏcer who had investigated the matter and in the present case the Sub Inspector was the investigating ofÏcer and he was under the administrative subordinate of Superintendent of Police but neither any complaint in writing was filed by the Sub Inspector or some other public servant to whom the Investigating OfÏcer is administrative subordinate.

11. In the judgement / order dated 20.11.2020 passed by this Court in Criminal Misc. Writ Petition No.12772 of 2020 (Yogeshwar Sood And Another vs. State of U.P. & 2 others) where the F.I.R. was challenged on the same ground and the Hon'ble Court has quashed the F.I.R. on the ground that as per provision contained in Section 195(1) in the Code of Criminal Procedure, 1973, there is a specific bar for taking cognizance of any offence punishable under Section 172 to 188 of the I.P.C. and quashed the F.I.R. with an undertaking of the petitioners that they will appear before the concerned Magistrate / Court. The relevant extract of the judgement is quoted hereinbelow:- "After hearing counsel for the parties and going through the record, it is apparent that Section 174-A deals with non-appearance and in case of issuance of a proclamation under section 82 of the Act-2 of 1974. As per provisions contained in Section 195(1) in the Code of Criminal Procedure, 1973 there is a specific bar from taking cognizance of any offence punishable under section 172 to 188 (both inclusive) of the IPC. Thus registration of FIR against petitioners under section 174-A, prima facie appears to be abuse of the process. However, in the writ jurisdiction we have to also balance equities. "

12. Learned counsel for the applicant has also relied upon judgement passed in the case of Daulat Ram vs. State of Punja reprted in 1962 Supp(2) SCR 812; AIR 1962 SC 1206; (1962)2 Crl LJ 286, the relevant para is quoted hereinbelow: "4. Now the offence under s. 182 of the Penal Code, if any, was undoubtedly complete when the appellant had moved the Tehsildar for action. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. In making his report to the Tehsildar therefore, if the appellant believed that some action would be taken (and he had no reason to doubt that it would not) the offence under that section was complete. It was therefore incumbent, if the prosecution was to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case. On the other hand what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House OfÏcer. The learned counsel for the State Government tries to support the action by submitting that s. 195 had been complied with inasmuch as when the allegations had been disproved, the letter of the Superintendent of Police was forwarded to the Tehsildar and he asked for "a calendar". This paper was flied along with the charge sheet and it is stated that this satisfies the requirements of s. 195. In our opinion, this is not a due compliance with the provisions of that section. What the section comtemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant namely the Tehsildar in this case. The trial was thus without jurisdiction ab inito and the conviction cannot be maintained. "

13. From the facts mentioned hereinabove, it is evident that no written complaint under Section 195 Cr.P.C. was ever made by the Investigating OfÏcer and filed the FIR under Section 174 IPC, hence the cognizance taken and issuance of summons to the applicant was therefore jurisdiction was wrongly assumed by the court and the trial was thus without jurisdiction ab initio as in absence of any complaint in writing by the ofÏcer concerned, as such, the proceedings of Case No.23/2019 State Vs Badal @ Vinay pending before Special Judge POCSO Act Ambedkar Nagar arising out of case crime no.91/2018, in offence under section 174 I.P.C., Police Station Aliganj, District Ambedkar Nagar is hereby quashed.

14. Accordingly, the present petition/application is allowed.

15. It is however open for the authorities to move an application under Section 195 Cr.P.c., if so advised. Order Date :- 16.4.2025 AKK AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench